VYTAUTO DIDŽIOJO UNIVERSITETAS. Eimantas Kuralavičius. Does the Organ Trade Constitute a Fundamental Human Rights Violation?

Transcription

1 VYTAUTO DIDŽIOJO UNIVERSITETAS TEISĖS FAKULTETAS Eimantas Kuralavičius Does the Organ Trade Constitute a Fundamental Human Rights Violation? Magistro baigiamasis darbas Teisės vientisųjų studijų programa, valstybinis kodas 601M90004 Vadovas prof. Charles Szymanski (Moksl. laipsnis, vardas, pavardė) (Parašas) (Data) Apginta doc. dr. Tomas Berkmanas (Fakulteto dekanas) (Parašas) (Data) Kaunas, 2017

2 TABLE OF CONTENTS TABLE OF CONTENTS...1 LIST OF TABLES...2 LIST OF FIGURES...3 SANTRAUKA...4 SUMMARY...7 INTRODUCTION...8 THE SUMMARY OF THE DEFINITION OF FUNDAMENTAL HUMAN RIGHTS, ORGAN TRADE AND TRANSPLANT TOURISM...10 Fundamental Human Rights...10 Organ Trade...12 Transplant Tourism...19 I. CASES OF HUMAN RIGHTS VIOLATIONS CONCERNING ORGAN TRADE...20 Harvest of Falun Gong Practitioners Organs...20 Indian Gurgaon Organ Trafficking Network Case...23 Organ Harvesting in Kosovo...24 Unlawful Removal of Human Tissue in Latvia...28 II. EXISTING ORGAN TRADE LEGISLATION WORLDWIDE...33 The National Organ Transplant Act of The Declaration of Istanbul on Organ Trafficking and Transplant Tourism...34 Israel s Brain-Respiratory Death law and the Organ Transplantation Law...35 Relevant European Union Legislations...36 Legal Protection for the Minors...37 Other Notable Country Legislations...38 CONCLUSIONS AND RECOMMENDATIONS...39 REFERENCES...41 ANNEX

3 LIST OF TABLES Table 1. Living organ donor transplantation vs. Cadaver organ transplantation comparison

4 LIST OF FIGURES Figure 1. Patients on a waiting list in one year in U.S. (2011)...12 Figure 2. Transplants from living and dead donors in U.S. (2011)...13 Figure 3. Total transplants annually in the U.S. ( )...13 Figure 4. Living and Cadaver donor transplants by year in the U.S. ( )...14 Figure 5. Waiting list candidates by Age in the U.S. (2017)...15 Figure 6. Waiting list candidates by organ type in the U.S. (2017)...16 Figure 7. Total organs transplanted worldwide ( )...16 Figure 8. Globally transplanted organs by organ type

5 SANTRAUKA Eimantas Kuralavičius, "Ar prekyba organais pažeidžia pamatines žmogaus teises?" Visam pasaulyje siaučiant Antrajam Pasauliniam karui, tuomečiam JAV prezidentui Franklinui Ruzveltui reikėjo sugalvoti pateisinimą JAV karinių pajėgų intervencijai į šį konfliktą, kadangi tuo metu šioje šalyje galiojo įvairūs šalies neutralumą užtikrinantys įstatymai ųjų sausio 6 d. Ruzveltas kreipėsi į tautą pareikšdamas, kad joks amerikietis negali ramiai stovėti ir tikėtis iš diktatorių žodžio laisvės, laisvės nuo baimės, norų laisvės ar religinės laisvės. Ši kalba vėliau įgavo Keturių laisvių kalbos vardą, o joje paminėtos laisvės tapo pamatinėmis žmogaus laisvėmis, galiausiai istorijos eigoje evoliucionavo į Visuotinę žmogaus teisių deklaraciją, kuri šiuo metu yra kaip visų tarptautiniu lygmeniu pripažįstamų pamatinių žmogaus teisių sąrašas. Prekyba organais yra sąvoka, kuria apibūdinamas platus sąrašas veiksmų, kuriais komercializuojami žmogaus organai ir kitos kūno dalys siekiant juos persodinti kitam žmogui. Šie veiksmai neretai įvairiomis formomis atliekami būdais, kurie gali suponuoti žmogaus teisių pažeidimą. Tarp tokių patenka tokie atvejai kaip žmonių gabenimas norint išoperuoti jų organus pardavimui, persodinimų turizmas, kai pacientai keliauja į kitas šalis, kad galėtų pasidaryti neteisėtas organų persodinimo operacijas ir kt. Tokie atvejai vyksta dėl didelio organų stygiaus pasaulyje, kadangi iš altruistiškų donorų gaunamų organų nei iš tolo nepakanka patenkinti organų paklausai ir dėl to asmenys, kuriems reikalingi nauji organai, kad galėtų išgyventi imasi kraštutinių veiksmų. Pagrindinis darbo tikslas buvo atsakymo į išsikeltą hipotezę, jog prekyba organais pažeidžia pamatines žmogaus teises, paieškos. Darbu taip pat buvo siekta aprašyti pamatines žmogaus teises, jų hierarchiją ir tipus, apibrėžti prekybą organais, jos ypatybes ir tipus, analizuoti kaip prekyba organais gali pažeisti žmogaus teises ir sukurti pavyzdinį modelį tarptautiniam prekybos organais reguliavimui. Moksliniame darbe buvo naudojami lyginamosios analizės, dokumentų analizės ir loginės analizės tyrimo metodai. Hipotezės patvirtinimo ar atmetimo tikslu darbe buvo analizuojami jau egzistuojantys įstatymai ir tarptautinės sutartys, reguliuojančios prekybą organais pasaulyje atskirų šalių ir tarptautiniais lygmenimis, taip pat buvo nagrinėjami įvairūs atvejai ir bylos iš įvairių pasaulio šalių, susijusios su organų prekyba ir gabenimu bei buvo įvertinta jų įtaka tarptautinei teisei ir jų santykis su pamatinių žmogaus teisių saugojimu. Pirmoje darbo dalyje yra analizuojami įvairūs atvejai ir bylos, susiję su neteisėtu organų pašalinimu iš žmonių ir prekyba žmogaus kūno dalimis. Darbe aptariami Kinijoje, Indijoje, Kosove ir Latvijoje vykę atvejai, susiję su žmogaus teisių pažeidimu ir organų prekyba. Kinijoje įstatymai leidžia iš nuteistųjų mirties bausme kalinių paimti organus kaip iš donorų, taip pat, įstatymai draudžia išpažinti vieną Qigong religijos atšakų Falun Gong. Įvairūs pranešimai ir tyrimai praneša, kad Kinija turi išvysčiusi slaptą sistemą savo ligoninės, kur nelegaliai yra persodinami šios krypties 4

6 pasekėjų, nuteistų ir dėl įvairių priežasčių mirusių laisvės atėmimo įstaigose, organai. Indijoje aisiais buvo atskleistas nelegalus prekybos organais ir transplantacijos operacijų atlikimo tinklas, kur buvo išnaudojami neturtingiausi benamiai indai, jiems pažadant darbą ir susitikus per darbo pokalbį atskleidžiant, kad darbo nėra ir galima užsidirbt atiduodant savo organus. Galiausiai, atlikus šias procedūras, šie asmenys būdavo paleidžiami nedavus žadėto atlygio arba sakant, kad jis bus duotas tik jei šie ras dar keletą žmonių, kurie sutiktų atiduoti organus už siūlomą atlygį. Kosove, įvairių šaltinių teigimu, vykstant Kosovo nepriklausomybės karui, Kosovo Išlaisvinimo armija gabendavo jaunus karo belaisvius serbus į šiaurės Albaniją ir ten pašalindavo jų organus, o juos pačius nužudydavo. Prie šio atveju pateikiama ir analizė, kodėl prekyba organais bent jau artimiausioje ateityje netaps Tarptautinio baudžiamojo teismo juridikcijos dalimi. Galiausiai, pirmoje darbo dalyje analizuojamas Latvijos atvejis ir Europos Žmogaus Teisių teismo byla, kurioje neleistinai buvo pašalinta dalis medžiagų iš avarijoje žuvusio vyro kūno. Byla parodė, kad dabartinėje situacijoje, kai trūksta tiesiogiai prekybai organais skirto tarptautinio įstatymo, teismas gali remtis ir interpretuoti Europos žmogaus teisių konvencijos straipsniais gindamas artimųjų ir paties velionio teises. Pripažinta, kad nesuteikimas tinkamų salygų artimiesiems nesutikti su mirusiojo kūno dalių pašalinimu suteikiant tokia teisę šalies įstatymuose pažeidžia artimųjų teises į asmeninį gyvenimą. Antroje darbo dalyje yra aptariami įvairūs egzistuojantys įstatymai, tarptautinės sutartys ir rekomendacijos, veikiantys vietiniu šalių ir tarptautiniu lygmenimis. Pažymėtina yra 2015 metais Europos Tarybos sudaryta sutartis, kuri draudžia bet kokią žmogaus organų ir kitų jo kūno dalių komercializaciją. Tai yra pirma tarptautinė sutartis susijusi su žmogaus organų gabenimu ir pardavimu. Šiuo metu ji dar neturi galios, kadangi kol kas ji yra pasirašyta 18 šalių iš kurių tik Albanija ją yra ratifikavusi, o įsigaliojimui reikia 5 ratifikavimų iš kurių 3 turi būti Europos Tarybos šalys. Taip pat, verta atkreipti dėmesį į pastaraisiais metais Australijoje, Singapūre, Izraelyje ir Pakistane priimtus įstatymus, leidžiančius tam tikras finansines ir socialines lengvatas iš valstybės asmenims, kurie sutinka būti organų donorais. Izraelyje šie įstatymai jau davė rezultatų didinant žmonių, sutikusių būti donorais skaičių ir mažinant užsienyje Izraelio piliečių daromų organų persodinimo operacijų skaičių. Šioje darbo dalyje taip pat apžvelgiami JAV teisės aktai, Stambulo deklaracija, ir pasaulyje galiojantys įstatymai, saugantys nepilnamečių asmenų teises, susijusias su prekyba organais. Galiausiai, remiantis nagrinėtais žmogaus teisių pažeidimo, susijusio su prekyba organais pavyzdžiais, buvo prieita išvados, kad hipotezė, jog prekyba organais pažeidžia pamatines žmogaus teises yra patvirtinta. Taip pat, remiantis darbe atlikta analize paaiškėjo, kad yra reikalingas bendras tarptautinis įstatymas, reguliuojantis prekybą organais supranacionaliniu lygmeniu, todėl yra pateikiamas pavyzdinis šio įstatymo modelis paremtas valstybių praktika ir moksline literatūra. Šis modelis nustato valstybėms suteikti finansines ir socialines lengvatas skatinant didinti donorų skaičių 5

7 ir bendrą žmonių norą būti neatlygintinais organų donorais, taip pat turėtų labiau koncentruotis ne į galutinį rezultatą (prekybą organais), o į patį tikslą ir žmonių ar organų nelegalaus gabenimo esmę išnaudojimą. Turėtų būti pateikiami aiškūs ir universalūs sąvokų paaiškinimai, šalims leidžiama kooperuotis persekiojant ir teisiant įstatymą pažeidusius asmenis ir pristatyti prasmingas sankcijas už įstatyme numatytų normų nesilaikymą. Tuo tarpu, kol toks įstatymas neegzistuoja, remiantis Elberte prieš Latviją bylos pavyzdžiu, asmenys gali ginti savo teisės, atvejuose, susijusiuose su prekyba organais remdamiesi Europos Žmogaus Teisių konvencija. 6

8 SUMMARY Eimantas Kuralavičius, Does the Organ Trade Constitute a Fundamental Human Rights Violation? The main aim of this work was to give an answer to the raised hypothesis of organ trade constituting a fundamental human rights violation. To achieve this various legislations directed at the subject of organ trade, as well various cases of organ trade and organ trafficking around the world were analysed and the impact they had on legal side and in terms of respecting the fundamental human rights was assessed. In the first part of the work, various cases regarding unlawful organ removal and trade were discussed. Chinese Falun Gong case showed how the government could exploit convicted criminals and religious groups by passing legislations allowing their organ harvest and creating a secret transplant system across country s hospitals. Indian Gurgaon trafficking network case showed how people from poor social classes can be unlawfully exploited for their organs. Kosovar case showed the exploitation of ethnic groups with intent to sell their organs. Finally, Latvian case of unlawful tissue removal showed that European Convention of Human Rights can be interpreted by courts in matters relating to human body part trafficking in abscence of international legislation meant specifically for organ trade. In the second part of the work, various legally binding and non-binding domestic and international legislations in relation to organ trade that are currently made were analysed. Finally, it was concluded that hypothesis of organ trade constituting a fundamental human rights violation is confirmed. Also, analysis in work has shown that an unified international legislation regarding organ trade is needed, so an exemplary law model based on domestic examples and scietific literature is given. 7

9 INTRODUCTION Organ trade, including organ trafficking, is a term which refers to a whole range of illegal activities that aim to commercialize human organs and tissues for the purpose of transplantation. It encompasses the trafficking of persons with the intent to remove their organs; transplant tourism where patients travel abroad seeking an (illegal) transplant with a paid donor; and trafficking in organs, tissues and cells, which refers to commercial transactions with human body parts that have been removed from living or deceased persons. 1 As of 2011, about people in the United States of America were waiting for new organs for transplantation. During that year, 4600 patients were removed from that list because they died and another 2100 became too sick to be able to withstand a transplantation surgery. On average, a person will wait three and a half years for an organ to become available for transplant. There is a significant shortage of available organs worldwide and the legality of organ trafficking or organ trade is a hot and relevant debate in both national and international law. 2 Legal status of organ trade all around the world remains inconsistent. For quite some time Iran has been the only country that legally allows human organs to be bought and sold. In 2013, Iran was partially joined by Australia and Singapore, both of which legalized financial compensation for living organ donors. 34 On the other hand, in 2015 the European Council created and signed the world s first international treaty on human organ trade called the Council of Europe Convention against Trafficking in Human Organs, which, as of now, is only ratified by 1 country and signed by 17 and which deemed any donation of organs from living donors for any compensation illegal. 56 Scientific research shows that of the 72 economic researchers who worked with organ trade, 68% were in favor of legalizing the organ trade, while only 21% were against it. Most of them cite low risk, bigger donor protection, longer life of screened kidney donors, better quality of live donor organs because there is more time to find best donor-receiver matches and better post-operative donor care than in black market among the arguments in favor of making human organ trade legal. 7 However, there is a whole different side of organ trade. Because of a demand being much higher than the supply, a big black organ market exists to fill in the gaps. There are many allegations and confirmed cases of cruel crimes being made in order to supply the black market: Serbia s attempt 1 Michael Bos, Directorate-General for External Policies Policy Department, Study Trafficking in human organs, (European Union, 2015) 2 Abby Wisse Schachter, The Case for Legal Organ Sales, [accessed on ] 3 Rashida Yosufzai, Live Donors to Get Financial Support, [accessed on ] 4 David Gutierrez, Singapore to Legalize Financial Compensation for Organ Donors, [accessed on ] 5 European nations sign world's first organ trafficking treaty, [Accessed on ] 6 Council of Europe Convention against Trafficking in Human Organs ( , CETS no. 216) 7 Jon Diesel, Do Economists Reach a Conclusion on Organ Liberalization?, Econ Journal Watch ( , vol. 7 no. 3) 8

10 in an ongoing international case to make Albania s actions against Kosovar Serbs, when they allegedly dragged them to some facility and killed them and sold their organs to other countries 8 or claims about Falun Gong practitioners being pursued in China and getting their organs harvested to supply huge market of organ all around the world are only two of a big amount of confirmed and alleged cases of huge scale organ harvesting. 9 Various human right groups like Organs Watch oppose idea of legalizing human organ trade. 10 With many countries going in opposite directions in regulating organ trade and there being little to none international legal regulation on it, it is important to research this topic and get an answer as to whether organ trade should be considered a fundamental human rights violation and thus be made illegal in international law worldwide or vice versa and where should individual countries go with their jurisdictions. The aim of this work is to analyze different legislations directed at the subject of organ trade, various cases of organ trade and organ trafficking around the world and to assess what effects they had in terms of respecting the fundamental human rights. The main goals of the research are: To give a conception of fundamental human rights, their hierarchy and types To give a description of organ trade, its properties, aspects and types To analyze how an organ trade could violate fundamental human rights To make an exemplary law model to regulate organ trade Methods of the research: comparative analysis, document analysis and logical analysis. Research s hypothesis is that organ trade should constitute a fundamental human rights violation. 8 Carla del Ponte, Madame Prosecutor: Confrontations with Humanity's Worst Criminals and the Culture of Impunity (Other Press, 2008) 9 David Kilgour, David Matas Bloody Harvest The Killing of Falun Gong for their organs (Seraphim Editions, 2009) 10 Patricia McBroom, An "organs watch" to track global traffic in human organs opens Mon., Nov. 8, at UC Berkeley [Accessed on ] 9

11 THE SUMMARY OF THE DEFINITION OF FUNDAMENTAL HUMAN RIGHTS, ORGAN TRADE AND TRANSPLANT TOURISM Fundamental Human Rights Travel back to January 6th of With World War II taking place all over the globe and United States of America neutrality laws still in effect, US president Franklin Roosevelt has to find a rationale for his country s intervention into fight and abolishment of neutrality acts. He goes on to give a speech which will go down in a history as one of the pivotal moments in international human rights history. In this speech he criticized US isolationism by saying, that [n]o realistic American can expect from a dictator's peace international generosity, or return of true independence, or world disarmament, or freedom of expression, or freedom of religion or even good business and that [t]hose, who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety. 11 Nowadays we call it The Four Freedoms Speech because in it Franklin Roosevelt introduced the four fundamental freedoms: the freedom of worship, freedom from want, freedom from fear and freedom of speech. 12 These served as a justification for war as well as a motivation for troops to keep on fighting during the remainder of WWII. After the war, when Nazi crimes and atrocities became apparent to world the need for a international document that protected human freedoms and rights all around the world arose. The Four Freedom became an inspiration and basis for a 1948 United Nations Universal Declaration of Human Rights and were even cited in the preamble of it. 13 Even though it is not legally binding on itself, it has since been adopted for the purpose of defining such phrases as fundamental freedoms and human rights that appear in the United Nations Charter (in fact, one of the reasons which influenced the creation of the Declaration was a lack of sufficient definition of the rights to which the UN Charter referred to). That means that it is a fundamental constitutive document of UN and is binding on all UN members. As a result, Universal Declaration of Human Rights serves as a list of all acknowledged legal fundamental human rights. Declaration has 30 articles in all, each representing a different fundamental human right. Among them are such rights as being born free and equal, right to life, right to privacy, right to asylum, ownership rights, freedom of thought, worker s rights,, freedom to move, etc. A full list of all fundamental human rights is provided in the Annex 1 of this work. 11 Franklin D. Roosevelt, 1941 State of the Union address The Four Freedoms (6th January, 1941) 12 Id 13 The Universal Declaration of Human Rights ( , General Assembly resolution 217 A) 10

12 Since this work frequently mentions fundamental human rights, it is noteworthy to mention the current President of the International Residual Mechanism for Criminal Tribunals Theodor Meron s work (1986) On a Hierarchy of International Human rights in which he, through examination of various documents and treaties such as an UN Charter, Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Discrimination Against Women, etc. concluded that terms such as fundamental human rights, human rights, rights and freedoms are being used interchangeably. This suggests that there is no real hierarchy of human rights and term fundamental human rights does not mean something bigger or more powerful than, for example, term human rights. International law to this day lacks an agreement on criteria which would help distinguish human rights on hierarchical terms even though various treaties and documents are usually using many hierarchical terms when describing different rights. 14 Unfortunately, even an act as honorable as saving a life via organ transplant could hide a human rights violation in ways of organ trade and trafficking. 14 Theodor Meron On a hierarchy of International Human Rights, The American Journal of International Law (1986, vol.80) 11

13 Organ Trade In 1954, a team of surgeons successfully transplanted the first kidney from Ronald Herrick to his identical twin Richard who was dying from kidney disease. 15 Possibility of an organ transplant made many people, especially who needed replacement of their own organs because of their health conditions, very happy and gave them a chance at having good health or even saving their life, but at the same time it created a problem of getting these replacement organs. Huge number of patients who need an organ replacement led to much higher organ demand than supply could satisfy which in turn led into a big scarcity problem in organ trade. The shortage of organs is virtually a universal problem. As of 2011, about people were waiting for new organs for transplantation in the United States. In a following year, only (10500 of those came from dead (cadaver) donors) people from that list received organ transplants, while 4600 patients disappeared from that list because they died and another 2100 people became too weak to be able to withstand a transplantation surgery due to their illnesses getting worse. On average, patients are currently waiting around 3.5 years for an organ transplant. 16 Patients on a waiting list in one year in U.S. (2011) 4600; 5% 2100; 2% 17000; 19% 66300; 74% Still waiting Died waiting Received transplants Became too ill for transplantation Figure 1. Patients on a waiting list in one year in U.S. (2011) 15 Steve P. Calandrillo, Cash for kidneys? Utilizing incentives to end America s organ shortage (2004) 16 See note 2 12

14 Transplants from living and dead donors in U.S. (2011) 10500; 62% 6500; 38% Transplants from living donors Transplants from cadaver donors Figure 2. Transplants from living and dead donors in U.S. (2011) Since then, the situation in United States became better: more transplants are being made and United Network for Organ Sharing now boasts a 19.8% increase in performed transplantations between 2012 and U.S. national record for total transplant surgeries made have been broken for 4 straight years now. 17 Despite the increase in overall transplant figures, the total amount of transplants from the living donor remains about the same, which in turn means that the percentage of living organ donation transplants compared to total amount of annual transplants has decreased. 18 Total transplants annually in the U.S. ( ) Figure 3. Total transplants annually in the U.S. ( ) 17 [Accessed on ] 18 [Accessed on ] 13

15 Living and Cadaver donor transplants by year in the U.S. ( ) Deceased donor transplants Living donor transplants Figure 4. Living and Cadaver donor transplants by year in the U.S. ( ) Living and Cadaver donor transplants by year in the U.S. ( ) According to the U.S. National Kidney Center, living organ transplantation has several advantages over cadaver organ transplantation, as shown in the table. Living donor Cadaver organ transplantation transplantation Chances of rejection Low, some transplants are done between genetically Higher than on living donor transplantation, because donor related persons which and recipient are usually not lessens the risk of matched genetically rejection Time needed for organ to start Usually starts functioning Some do not function functioning immediately immediately and require additional procedures Compatibility and convenience of the procedure Potential donors can be tested ahead of time to find the most compatible one, transplant can take place at a convenient time for both donor and the recipient. Very limited ability to test donors ahead of time, transplant has to be scheduled as quickly as possible to avoid damage to donated organs Table 1. Living organ donor transplantation vs. Cadaver organ transplantation comparison [Accessed on ] 14

16 In terms of age, at which people are most likely to be in need of an organ transplant, UNOS data shows that at least in the U.S. persons who are 50 years old and older constitute 67% of all the patients on the waiting list, as of 2017 March 5th. If you add people aged between 35 and 49 years to this group, the total percentage would jump up to 90% of all people on the organ waiting list. 20 Waiting list candidates by Age in the U.S. (2017) < 1 Year 0% 1-5 Years 6-10 Years 1% 0% % Years 45% Years 23% Years 1% Years 8% < 1 Year 1-5 Years 6-10 Years Years Years Years Years 65 + Figure 5. Waiting list candidates by Age in the U.S. (2017) In some countries, the development of a deceased organ donation programme is hampered by sociocultural, legal and other factors. Even in developed countries, where rates of deceased organ donation tend to be higher than in other countries, organs from this source fail to meet the increasing demand. The use of live donors for kidney and liver transplantation is also practiced, but the purchase and sale of transplant organs from live donors are prohibited in many countries. This shortage of an indigenous supply of organs has led to the development of an international organ trade. Organ trade is the trade of human organs, tissues or other human parts with the intent of transplantation, where potential recipients sometimes even travel abroad to obtain organs through commercial transaction and through years as has been internationally recognized as a significant health policy issue in the international community mostly because of a lack of data and effort to use and integrate the currently available information. 21 According to UNOS, in the United States most people on the donor waiting list are waiting for kidney donors. They constitute a massive 81% of all people waiting for organ donors. Far away second most sought after replacement organ is liver with 12%. All other organs consist only a small minority of needed human parts by sharing the remaining 7% [Accessed on ] 21 Yosuke Shimazonoa, The state of the international organ trade: a provisional picture based on integration of available information, Bulletin of the World Health Organization (December 2007) 22 [Accessed on ] 15

17 Waiting List Candidates by Organ Type in the U.S. (2017) 932; 1% 1742; 2% 3994; 1381; 1% 47; 0% 272; 0% 3% 14370; 12% 98149; 81% Kidney Liver Pancreas Kidney / Pancreas Heart Lung Heart / Lung Intestine Figure 6. Waiting list candidates by organ type in the U.S. (2017) Globally, trends appear to stay the same as in the U.S. According to Global Observatory on Donation and Transplantation (GODT) data from their Global Activity in Organ Transplantation reports from 2010 through 2014, total solid organ transplantation procedures have been increasing in number every year from 2010 to Most of the transplantation surgeries (67%) in 2014 were kidney transplantations while liver transplantations come in far-away second with 22%. Heart, lung, pancreas and small bowel transplantations together constituted only 11% of all solid organ transplants made. In all of the years from 2010 through 2014 the total amount of surgeries satisfied less than 10% of all of the global need. 23 Total Organs Transplanted Worldwide ( ) Figure 7. Total organs transplanted worldwide ( ) 23 GODT Global Activity in Organ Transplantation reports 2010 through

18 Globally Transplanted Organs by Organ Type (2014) 4689; 4% 2328; 2% 215; 0% 6542; 5% 26151; 22% 79948; 67% Kidney Liver Heart Lung Pancreas Small bowel Figure 8. Globally transplanted organs by organ type Organ demand hugely exceeds the organ supply creating big organ shortage problems all around the world and for people with a need for new replacement organs may resort to measures they would not normally take, even if it involves breaking the law. Individuals like these would often turn to underground markets. The underground market facilitates individuals who seek avoidance of laws that prohibit various commodities that in result are not available in the open market. It differs from black market in that it is not concerned with avoiding pricing regulations and deals in commodities otherwise not available to buy. However, participating in these underground markets is very risky: transactions often consist of inadequate information, it s also unfair where donor most of the time is left disadvantaged in comparison with a broker that makes the deal. 24 The first reports of commercial trade in human organs and tissues began in the 1980s and concerned citizens of India who were forced into selling their own kidneys because of their poor living and financial conditions that they had to live with. Most of their organs were sold and transplanted to patients from Middle East countries, as well as Malaysia and Singapore. 25 So even though human organ and tissue transplantation was a huge step for medical science and one of the pivotal moments in saving many lives in the future, it also opened up a legal hole which needed to be filled with new regulations on the human body. Since kidney transplants started being possible and carried out about six decades ago, the Western approach to organ donation has been one of unpaid giving. This type of donation typically occurs for what is termed altruistic reasons, meaning that organ donors are not acting for any kind of material gain. It is an organ procurement method that uses expressed consent which means that cadaver and living donor organs are only received if there is an expressed consent of the donor or in case the donor is deceased, the consent of donor s family. This method is not something new in organ 24 Erica D. Roberts, When the Storehouse is Empty, Unconscionable Contracts Abound: Why Transplant Tourism Should not be Ignored, Howard Law Journal (2009, vol. 52:747) 25 See note 1 17

19 donation as it was already being used in as early as fourteenth century, long before the availability of organ transplantation procedures, when medical students where using deceased donor corpses to study human anatomy. As of late, the principled stand of intergovernmental and professional organizations has come much closer to making noncommercial organ donation the universal ethical norm. Some countries use this method of organ procurement exclusively while others allow other procurement methods in addition to altruistic method While the altruistic method of organ procurement is widely used by such countries as United States, England, Australia and Canada, several other nations, as well as some U.S. states, have adopted a completely opposite method one of presumed consent, also known as non-altruistic method. Under this method and laws that regulate it, it is presumed that each adult person, regardless of their sex, is an organ donor at death. Only way to avoid your organ donation after death is an expressed refusal to donate. This method is also widely used worldwide, but was subject to both strong criticism and support from different arguing sides. 28 Nowadays, organ transplantation is being undertaken in more than 100 countries all around the world. Since the adoption of the Declaration of Istanbul on Organ Trafficking and Transplant Tourism, the quantity of transplants increased by 11.6% globally in just the first three years. The use of living donors grew even steeper with approximately 17.4% between 2008 and Despite World Health Organization s best efforts to increase technical capabilities of medical facilities to carry out advanced surgical procedures such as transplantation and developing medical and governmental infrastructure to support organ donation from deceased persons, living donation still remains the standard norm in many parts of the world Alexander M. Capron, Six decades of organ donation and the challenges that shifting the united states to a market system would create around the world, Law and Contemporary Problems (2014, vol. 77:25, no. 3) 27 See note See note Id 18

20 Transplant Tourism Travel for transplantation occurs when organs, donors, transplant professionals or recipients are travelling across the borders of the countries. It transforms into transplant tourism as soon as it involves organ trafficking or transplant commercialism or if the countries that are providing transplantation procedures pay more attention to providing these services to patients from outside of the country consequently damaging their ability to treat their own citizens equally in terms of those procedures. 30 The World Health Organization Consultation Meeting on Transplantation with National Health Authorities in the Western Pacific Region gave a definition of transplant tourism calling it the purchase of transplanted organ abroad, including access to an organ bypassing national laws, rules or processes of any or all countries involved. 31 Transplant tourism is a highly organized process. On the internet, there are more than a few sites that promote transplant packages that include organ, travel, hotel stay, medical care and a transplant procedure which is usually performed in quality hospital environment by professional surgeons. Countries that allow these transplantations often facilitate the operations. Both parties recipient and donor most of the time choose a third country where the organ transplant is performed. Transplant tourism has several risks to it: there are reports of commutable diseases spreading through transplantation of organs bought in black market and also, the transplant tourism as a whole fosters criminal activity, which is exploiting many different individuals worldwide. 32 Because of inconsistent legislation processes and policies around the world, people can avoid the law and its consequences by purchasing body parts from foreign suppliers and make transplant operations in countries were said procedures are conducted without anyone questioning it. Although this usually helps to save recipient s life it also often leaves donor vulnerable and exploited. 33 Among the biggest organ exporting countries are Brazil, China, India 34, as well as Mexico, Kosovo, South Africa, Mozambique and etc. Among the biggest receiving (destination) countries are United States of America, Israel and etc See note World Health Organization Consultation Meeting on Transplantation with National Health Authorities in the Western Pacific Region, Manila Philippines ( ), Summary 18, (WP)HSD/ICP/HRF/6.4/001 (Septe,ber 2006) 32 See note See note Id 35 Jacqueline Bowden, Feeling empty? Organ trafficking & trade: The black market for human organs, Intercultural Human Rights Law Review (2013, vol. 8) 19

21 I. CASES OF HUMAN RIGHTS VIOLATIONS CONCERNING ORGAN TRADE Meet Gursimran, a 30-year old homeless Indian street dweller. For him and his family, a small shack squeezed among similar dwellings in a narrow street of a big industrial city has for a long time been home. Gursimran and his five children has to share a same water pump with almost 100 other families of the similar fate and they have to take turns to use a public toilet. Also, they are forced to sleep, cook and wash on the streets. Gursimran dreams of a better life but he can t afford even the cheapest of housings. He would anything to get a paying job and buy at least any of the cheapest living places for him and his family to have a better life. One day he is approached by a foreign looking guy who offers him a job and designates a meeting place for job interview. Gursimran, happily and with a feeling of a new hope rushes to the meeting place at the prescribed time. Unfortunately, the offer turns out to be a scam. But not all hope is lost, as he is offered a satisfying amount of 2000 USD for one of his kidneys. Knowing that another chance to make that much money may never come to him, he accepts although he is not even sure what impact a loss of kidney even makes to a person. He is then transported to a safe-house, gets his organs removed, then after a short recovery period is transferred back to his street. People, who supervised the procedure said that he can only expect his 2000 dollars if he recruit another 3 people from the street. Even then, he can t be sure they will keep their word as well as he can t be sure about his own future, being left without one of his kidneys and without a proper medical supervision. Gursimran here is fictional, but his story, sadly, is not. Gursimran embodies hundreds of real-life Indian street dwellers who got exploited in Gurgaon trafficking network case. And even this case is not unique in the field of crimes associated with organ crimes which will be examined further. Harvest of Falun Gong Practitioners Organs The People s Republic of China s law allows the organs that are taken from prisoners who are sentenced to death to be legally sold. 36 The corpses and human organs can be used if the bodies of those prisoners were not collected or were refused to be collected by relatives or if the convicted person gave a permission to use his body or organs for use by medical units or if the families, of those deceased prisoners have given consent. This 1984 act called Provisional Regulations on the Use of Corpses or the Organs of Executed Prisoners created a few loopholes that can be easily exploited. Firstly, according to it, bodies of deceased convicts can be used after their death even without permission of their families or themselves as long as their body was not collected and secondly, 36 Id 20

22 regulations do not require that prisoners need to be sentenced to death and then executed in order for their organs to be eligible for use. 37 On August 21 of 2000, the Chinese Ministry of Public Security issued new orders that said that the practice of Falun Gong needed to be removed in three months time. In 2003, it was reported that the Communist Party local office 610 which was responsible for repressing of Falun Gong practice, got orders that emphasized that there are no laws that regulate the treatment of the practitioners and also that death by beating of Falun Gong practitioners are just interpreted as a suicide and the bodies can be cremated without identifying them. Also, the high-ranking officials used 1984 regulations to prevent families from claiming practitioners bodies which led to them being used for harvesting of organs and illegal commercial sales of them. Furthermore, the authorities do not inform the families of the imprisoned practitioners that they were put in labor camps and they themselves sometimes refuse to identify who they are in fears that their families are going to be followed and persecuted. All that in turn leads to authorities not even being able to inform the family members of prisoners because they do not know who they are. All of these circumstances let organs of Falun Gong practitioners to be harvested and sold without the consent or sentence to death and the high number of anonymous detained practitioners in labor camps suggest that this is a huge potential source for unlawful harvest and selling of prisoner organs. 38 The Falun Gong is a subsection of Qigong, which was a dominant religion of China and has many similarities with Buddhism. It was initiated in 1992 by Li Hongzhi and emphasizes truth, benevolence and compassion. Only rules to practicing Falun Gong is reading Master Li s teachings and also performing various meditative exercises. Falun Gong is classified by a lot of countries as a religious or spiritual group, but they themselves don t see it like that because they don t have any provisions for people to follow or any churches, temples or religious rituals and also people can come to learn and leave any time they want. There is said to be about 70 million practitioners right now, but there is no way to know the exact number for sure as there is no membership list available and also, nowadays, Falun Gong followers are practicing it in secret or imprisoned in labor camps. The Falun Gong diverged from other sections of Qigong, because Li, in addition to exercise, also made teachings on philosophies. Before Qigong became forbidden, Falun Gong was one of the most popular groups of it. In 1999, one of the professors from Chinese Academy of Sciences write an article calling the Qigong a false practice and also used Falun Gong as an example also emphasizing it s bad influence on young people. In response, around 15 to 30 thousand followers held peaceful protest in three Chinese cities. In July of the same year, the Chinese Ministry of Civil Affairs banned Falun Gong as an organization and as a result issued an arrest warrant for Li Hongzhi and started 37 David Kilgour, Ethan Gutmann, David Matas, Bloody Harvest/The Slaughter An Update (2016) 38 Jennifer L. Zegel, Bloody Persecution: Plight of the Falun Gong (2008) 21

23 putting practitioners into labor camps for re-education through labor, which is a form of detention in China which is forced on citizens without any kind of trial or judicial review. Falun Gong was seen by Chinese authorities as a threat that, because of its increasing numbers, could pose a problems for maintaining a social order. On the other hand, United States of America, among other countries, see it as nonviolent and peaceful belief and practice. 39 On June 10 of 1999, the Central leading group to handle the Falun Gong issue was created by Chinese Communist Party which established an Office of the leading group to handle the Falun Gong issue was established. It is called the 610 Office because of the date it was founded. The office has a far-reaching structure that extends through the Party, military and government as is empowered to command police and judicial organs. It is dedicated to eradicating the practice of Falun Gong in China. The 610 office has a big extralegal powers to achieve it. Later, the group changed the name into Central Leading Group on Dealing with Heretical Religions or Office of Maintaining Stability. As a result, the regime used the mobilization of the entire state apparatus to fight against the practice of Falun Gong and make it go extinct. Main tool that hey used was propaganda campaign when the country s newspapers, radio and television stations, websites and rural area speakers were used to spread the propaganda against Falun Gong practitioners. In addition, the persecution and capturing of Falun Gong was one of the main focuses of Chinese domestic security. During all this process, the number of transplants that were done from Falun Gong practitioners as donors grew steadily. The organs of practitioners were sold to transplant centers by judicial systems and forensic hospitals were performing organ transplant procedures really actively. Also, some special institutions, created and regulated by Public Security Bureaus were massively conducting human body and organ transplantation experiments. 40 Reports in 2006 suggested that as many as Falun Gong practitioners got convicted to death and had their organs sold in the market. There have also been evidence of about three thousand additional practitioners being persecuted and killed in the following two years. 41 On the other hand, Chinese literature suggest that all these regulations have achieved much support among the society and also, that it helps to unify people s thinking, straighten out their understanding and maintain stability in society See note See note See note Laws Exist for the Banning of Falun Gong, Chinese Law and Government (2000, vol. 32, no. 5) 22

24 Indian Gurgaon Organ Trafficking Network Case Along with China, India gives a great example of massiveness and tragedy of organ trade issues. Both of these countries are having a rapid industrial growth, experience various environmental problems as a result of it and also have a prominent organ trafficking system. India shares many organ trafficking issues with other similar countries and is being plagued by them, which makes India an exemplary country in this regard. 43 However, India provides some quite unique perspectives since, unlike other countries, Indian people most times are actually willingly giving their organ away for compensation without a need of coercion or any other kind of use of force although many times they are not being compensated as promised when their organs are actually removed. Indian surgeons often do these illegal transplant procedures from home and sell these organs to rich Indians or people from abroad who travel to Indian for transplant procedures. 44 One of these examples is the Gurgaon trafficking case, which was one of the biggest scandals regarding organ trafficking all around the world. In January, 2008, the police arrested a few persons that were accused of recruiting of poor Indians in Moradabad and making illegal transplant procedures. Further investigating led to industrial city of Gurgaon where it became known that main figure in all these operations was Amit Kumar, who owned property such as a residential building and a guesthouse in the city. One of these building turned out to actually be a private clinic where organ transplant procedures took place. Police found several people there some of whom where recovering from organ transplant operations and a few foreigners from Greece and USA. Amit Kumar escaped from city after being warned by local police, but was arrested in February, 2008 in a wildlife of Nepal. He denied any involvement in criminal activities upon arrest. 45 Further investigations showed that Amit Kumar conducted and coordinated the operation from his house in Canada. People were being recruited in eight different Indian states, most of them were poor urban pavement dwellers or unemployed peasants from rural areas. All of them were men of years old, but it was also reported that women from Nepal were also used as organ suppliers. Young, unemployed men were promised a job by being approached on the labor market. When it became apparent these job offers were fake, scouts offered these people between 1000 to 2500 US dollars for their kidneys and then medically examined them before putting them into safe-houses to wait until the transplant procedure is made. There were also many instances were supplier wasn t asked for consent and got his organs forcibly removed. Private hospitals were taking care of these suppliers and that means that many doctors were involved in the operations and got their slices of profits. Furthermore, many surprising facts became known during the trial of Amit Kumar and his 43 Ranee Khooshie Lal Panjabi, The Sum of a Human s Parts: Global Organ Trafficking in the Twenty-First Century, Pace Environmental Law Review (2010, vol. 28, no. 1) 44 See note See note 1 23

25 brother who was also involved in the organ trafficking operation. One of them was that, both of them never received any medical training but have performed hundreds of organ transplant and organ removal procedures. Also, their connections with corrupt local police as well as with the Indian urban mafia, to whom they paid extortion fee, became apparent. Both Amit and his brother were arrested four times in the past for accusation of taking part in illegal organ trade operations and every time they were released by paying the bail money. Trial also showed Khan s involvement in illegal organ transplants in town of Faridabad where three organ recipients from Turkey died because of incompetently done transplant procedures. 46 Police investigation showed that at least 400 to 500 organ transplant procedures were made in at least seven years of the operation. Most of the organ recipients were from India, but starting from 2005, there were an increasing number of foreign recipients getting transplant procedures in Amit private clinic. They were of Australian, Saudi Arabian, Canadian, British, American and Greek nationalities. The case showed many essential things for a organ trafficking network to work successfully. These include poverty, corruption in local police forces, lack of cooperation and contact between the Indian police in different states, rich patients desperate to find replacement organs and capabilities to conduct a transnational operation. It was also a very important case in that it was the first case of illegal organ trade in India were accused persons were actually tried and sentenced, because all of the previous similar cases didn t have that. 47 Organ Harvesting in Kosovo Kosovo is another country, that is constantly plague by issues of organ trafficking. Ever since the beginning of Kosovo War back in 1999, several cases of organ harvesting in this country became known and brought up. Organ trafficking problems of Kosovo are quite unique, because cases involve the Kosovo Army. 48 After the war of Kosovo, American journalist obtained testimonies from eight eyewitnesses who, independently from each other, described details of a yellow house which as used as operating clinic to remove organs from prisoners of Serbian descent and later send them to be sold on illegal organ market. This house was in village of Rripe in Albania. Journalist then sent those testimonies to the Office of Missing Persons and Forensics at the United Nations Interim Administration Mission in Kosovo. In February of 2004, a team of UN and Hague War Crimes Tribunal investigators led by Matti Raatikainen came to the mentioned house to conduct investigation. The chemical spray, used to find traces of blood showed a few spots were there was blood in a downstairs room of the yellow 46 Id 47 Id 48 See note 35 24